No Effective Trafficking Definition Exists:
Domestic Implementation of the Palermo Protocol
Jean Allain
When we speak across international borders we speak different languages.
So is the lesson to be learnt from considering the definition of trafficking in persons as it has been incorporated in the domestic legal order of the vast majority of countries of the world? While the United Nations established a definition of trafficking in persons in 2000, the mechanism meant to give voice to the suppression of such traffic is transnational rather than international in nature. As a result, it is for each State to decide, once they have consented to be bound by the 2000 UN Palermo Protocol, not only the extent to which they will adopt provisions meant to prevent, suppress and punish trafficking in person, but more fundamentally: they decide what constitutes ‘trafficking in persons’ within their own national jurisdiction. What emerges from examining the manner in which the Palermo Protocol has been incorporated into the legal order of various countries is that the very regime of trafficking in persons is fundamentally flawed. This is so, as Palermo is first and foremost an instrument related to cooperation amongst national law enforcement agencies seeking to suppress the traffic in persons by organized crime groups across international borders. Yet, in their attempt to end this transnational crime, States speak to each other in different languages: both literally, but also figuratively. Figuratively, as their jurisdictions are not truly compatible with each other, when they speak of ‘trafficking’, they are in the main speaking about different things.
This Article considers the overall regime established by the 2000 Palermo Protocol to demonstrate the manner in which the law of trafficking has come to be incorporated into the domestic legal order of States. In so doing, and with special reference to the definition of trafficking, it shows the limited ability of States to actually carry out their avowed wish to suppress trafficking in persons. Because their jurisdiction over what is termed ‘trafficking’ is different, the ability for the origin, transit and/or destination countries to ‘join-up’ is rendered unworkable by, for instance, extradition treaties that require crimes to be common to both jurisdictions or the application of extraterritorial jurisdiction when what is deemed a crime in one jurisdiction is not so in another. Thus, in a very short period of time, legislators around the world have created, under the banner of ‘trafficking’, an international regime which, through its implementation in the domestic sphere, has fractured its potential effectiveness.
The Transnational Law of Trafficking
On 15 November 2000, the United Nations General Assembly adopted the United Nations Convention against Transnational Organized Crime meant “to promote cooperation to prevent and combat crime more effectively”.[1] Along with that Convention were three protocols – additional instruments meant to supplement the original – which cover trafficking in persons, smuggling, and illicit firearms, which were also opened for signature.[2] The trafficking in persons protocol is entitled the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime. So as to emphasize the quest to challenge organized crime, the UN originally opened the Conventions and its Protocols for signature in Palermo, Italy, the heartland of the Sicilian mafia. Since then, the anti-trafficking protocol has come to be known as the Palermo Protocol.
The starting point for understanding the obligations which flow from the Palermo Protocol is its relationship to the UN Convention against Transnational Organized Crime, as both of these instruments are to be “interpreted together”.[3] States consenting to the Convention have an obligation to criminalize the involvement in an organized criminal group, in laundering the proceeds of crime, in corruption, and in obstruction of justice where the offence is transnational in nature.[4] By ‘an offence that is transnational in nature’, what is meant is either that it is committed in more than one State or when committed in one State, it “has a substantial effect in another”; or “substantial part of its preparation, planning, direction or control takes place in another State”, or again: it “involves an organized criminal group that engages in criminal activities in more than one State”.[5] By reading the Convention in conjunction with Palermo Protocol, it becomes clear that the Protocol is not exclusively applicable to situations where a person is trafficked across an international border, but in fact can be trafficked internally – that is to say: the victim may be moved solely within one State, while the crime by contrast may be transitional in nature if, for instance, it “involves an organized criminal group that engages in criminal activities in more than one State”.
While laundering, corruption and obstruction of justice are tangential to an understanding of ‘trafficking in persons’, the concept of an ‘organized criminal group’ as set out in the Convention is fundamental. An ‘organized criminal group’ has a specific definition applicable both to the Convention and to the Protocols:
‘Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.
As this is often overlooked by commentators considering instances of trafficking in persons, it should be understood that such an ‘organized criminal group’ is not merely the sum of those who came into contact with a person as they were trafficked, instead it must be a ‘structured group’; where the notion of a ‘structured group’ is defined in the Convention as a “group that is not randomly formed for the immediate commission of an offence”. In other words, an organized criminal group is more than simply those that conspire or commit a crime. Instead, such a group needs to have cohesion, acting over time, with the aim of committing a serious crime, though it does“not need to have formally defined roles for its members, continuity of its membership or a developed structure”.[6] In criminalizing the involvement in an organized criminal group, the Convention requires States adopt legislation which ensures that there is a juridical space in which activities in and around such a group is made illegal. That space includes activities touching on those who agree to commit as well as those that take active part in the committing of a serious crime. Active part in the committing a serious crime, for the Convention includes the following activities: “organizing, directing, aiding, abetting, facilitating or counseling”, as well as other activities which knowingly contribute to the aim of the crime.[7]
The Palermo Protocol supplements the UN Convention against Transnational Organized Crime as it requires, beyond the criminalizing of involvement in organized criminal groups, of money laundering, of corruption; and of obstruction of justice; that State criminalize, within their own domestic legal systems, the trafficking in persons.[8] Trafficking in persons is defined, for the purposes of the Protocol, as follows:
‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.[9]
When interpreting the Protocol together with the UN Convention, the crime meant to be prescribed at the domestic level is one in which – in essence – a number of people, working together moving an individual against his or her will or knowledge so as to exploit that person.
While the definition of ‘trafficking in persons’ has been considered in depth[10], that definition is somewhat moot, as despite being established at the international level, its true application takes place at the domestic level, where oftentimes unique readings of trafficking have been promulgated by various States party to the Palermo Protocol.
At the international level, I have just noted that the definition is ‘somewhat moot’ as there is, in fact, limited scope to give voice to its criminalization internationally. That scope is to be found in the Statute of the International Criminal Court which establishes the crime against humanity of ‘enslavement’. This crime is defined as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.[11] While the jurisdiction of the Court does not criminalize trafficking in persons per se, it does, by reference to the phrase just highlighted, utilize the language of what would come to be the official title of the Palermo Protocol, bring the possible application of this instrument into the orbit of international judicial consideration.
The Palermo Protocol, like the UN Convention against Transnational Organized Crime is transnational in nature. While the Convention provides its own reading of what constitutes a ‘transnational’ crime, in might be helpful to think of the notion of transnational more generally. Transnational denotes the involvement of a number of nations. Yet, this understanding could also be applicable to the concept ‘international’. The distinction is to be found in the fact that the international is applicable to systems where international institutions are a central pillar, whereas the transnational, the system functions in a purely anarchical fashion, devoid of a central authority. Thus, a transnational instrument is one which sets out a framework for acting that is meant to create half-bridges that will then connect when other States follow suit. Think of transnational instruments as those red connectors for Hot Wheels sets which link up States on specific issues.
Within this context where the crime of trafficking in persons is transnational in nature, issues with regard to which State has the power to act, is fundamental. In law, determining the power to act is known as jurisdiction. While the Convention pays perfunctory acknowledgment to the need for State Parties to carry out their obligations “in a manner that is consistent with the principles of sovereign equality and territorial integrity”, negotiators would have needed to devote some energy to developing the other provision of Article 4 which, on the face of it, simply affirms the application of sovereignty:
Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.[12]
Yet, States felt compelled to add this provision as, with regard to transnational criminal law, the issue of jurisdiction is fundamental while sovereignty is primal. In setting out its jurisdiction provisions, the UN Convention is quite clear in establishing that only States have the power to assert jurisdiction over offences committed on their territory or on flagged vessels.[13] Beyond that, any jurisdictional basis for acting would require assistance of other States. So while the “Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law”, it requires that such jurisdiction be established “without prejudice to norms of general international law”, foremost amongst these being respect for the sovereignty of States.[14]
Elsewhere, the Convention provides the possibility for establishing greater jurisdiction, with the proviso that such extensions of power to act are subject to Article 4 – those provisions mentioned a paragraph earlier related to sovereignty and the exercise of jurisdiction being the purview of a State and its domestic law. With this as a preambular requirement, States may establish jurisdiction over offences committed by nationals or stateless persons who are habitual residents of that State. Further, States may establish jurisdiction touching on certain elements of money laundering, but also with regard to issues involving organized criminal group where a certain activity is “committed outside its territory with a view to the commission of a serious crime within its territory”.[15]
This then is the context in which one should understand the parameters of trafficking in persons as established by the Palermo Protocol when read in tandem with the United Nations Convention against Transnational Organized Crime. Had the regime established to govern trafficking in persons been a truly international one, an oversight body would have been established – say a treaty monitoring body or an international court. Yet, much more would have been required, as the very essence of the agreements which sets the foundation for suppressing the crime of trafficking in persons is one which is focused on the domestic rather than the international legal order. All things being equal, this should not have caused issues as the vast majority of multilateral treaties in force today are transnational rather than international in nature. Yet, what has led to the fragmentation of our understanding of trafficking is specific to its definition.
Domestic Implementation of ‘Trafficking in persons’
The definition of trafficking in persons as set out in the Palermo Protocol was an unstated invitation to legislators around the world to modify its provisions.[16] This is so as the definition is a flawed piece of drafting. The provisions of the Palermo Protocol were always destined to be incorporated into domestic legislation – this is the essence of both it and the Convention – that the State Parties adopt legislation which established trafficking a criminal offences. Yet the definition, as set out in the Palermo Protocol is, in the main, three sets of categories (re: recruitment, transportation, transfer, harboring / coercion, abduction, fraud, deception / forced labour, slavery, servitude, removal of organs). For the members of legislatures around the world, this raised more questions than it answered as the Protocol off-loaded the need to define these various terms to domestic legislators.[17] The invitation was further extended by the fact that the category of types of exploitation was left open-ended by the phrase “Exploitation shall include [...]”. As a result, it was left to each country to determine what type of exploitation it would seek to suppress in the context where the very term ‘exploitation’ was ill-understood and nowhere defined in law.
How then did legislators the world over incorporate the definition of trafficking in persons into their domestic legal orders? As a backdrop, it might be emphasized that we have entered a ‘neo-abolitionist’ era as a result of the Palermo Protocol which has led, in a very short period of time, to a great many States incorporating anti-trafficking provisions into their domestic legal order. This, in the main, is the result of the emphasis which the United States of America has placed on the issue of trafficking as part of its foreign policy. The United States has taken on the primary role as anti-trafficking advocate internationally through its development of an annual Trafficking in Persons Reports which, backed by coercive legislation developed by the US Congress, has precipitated a proliferation of domestic anti-trafficking laws. As the International Organization of Migration notes, combating “human trafficking has become an increasingly important political priority for many governments around the world.”[18] This is so, in large part, because by virtue of the William Wilberforce Trafficking Victims Protection Re-authorization Act of 2008, the US Congress makes it “the policy of the United States not to provide non-humanitarian, non-trade related foreign assistance to any government that “does not comply with minimum standards for the elimination of trafficking”.[19] Thus, by threatening to withdraw financial support (both American and its support before the IMF and World Bank), measuring States against its own minimum standards, and placing States which fail to meet these standards on ‘watch-lists’; the United States has forced countries to take trafficking seriously.
Giving voice to issues of trafficking has meant that States incorporated various elements of the Palermo Protocol into their domestic legal order. That instrument, it should be acknowledged, is not an international human rights law treaty, but a transnational criminal law convention, as it supplements the 2000 UN Convention against Transnational Organized Crime. While this is formally so, the Palermo Protocol is also in substance very much an instrument of criminal law as opposed to human rights law. In other words, the emphasis of the Protocol is with regards to perpetrators of the crime rather than the victim. While the Protocol mandates the criminalization of trafficking in persons: “States shall adopt such legislative and other measures ...”; it leaves it to States “in appropriate cases and to the extent possible”, to protect, not the victims, but “their privacy and identity”.[20] It is left to each State then to “consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons”, rather than actually providing for such recovery.
Perhaps the best indication that the Palermo Protocol is not a human rights instrument is the fact that in 2005, the Council of Europe felt compelled to adopt its own Convention on Action against Trafficking in Human Beings, so as to include binding human rights obligations. Much as the failure in the infancy of the United Nations to provide for a legal instrument dealing with human rights, led to the non-binding 1948 Universal Declaration of Human Rights being adopted by the General Assembly prompted European States in 1950 to create the binding human rights obligation manifest in the European Convention of Human Rights; so too has the failure to provide adequate human rights protection in the 2000 Palermo Protocol led to the 2005 Council of Europe Convention.
When moving to incorporate ‘trafficking’ into the domestic legal order, State legislators have not sought to simply transpose the Palermo definition verbatim into their legislation. Instead, in many instances, they have opened the definition to the domestic process in which the legislators crafted their own understanding of what constitutes ‘trafficking’. This was well within their right, as a 2009 Model Law against Trafficking in Persons prepared by the United Nations makes plain that “thegeneral provisions and the definitions [...] are not mandated by the Protocol per se”.[21] As we shall now see, very few States have incorporated the actual definition of trafficking in persons found in the Palermo Protocol, often they have set out what is in essence a variation on the theme, but in other instances they have provided a unique reading of what constitutes the criminal offence of trafficking in persons.